CCMA Representation: A Guide to Rule 25

For many employees and employers in South Africa, the Commission for Conciliation, Mediation, and Arbitration (CCMA) and various bargaining councils are the primary forums for resolving labour disputes. Understanding who can represent you in these processes is crucial. This is governed by Rule 25 of the CCMA's Rules for the Conduct of Proceedings, which also applies to proceedings in all bargaining councils.

The Purpose of Rule 25

Rule 25 aims to keep the initial stages of dispute resolution accessible, informal, and speedy. The goal is to create a less intimidating environment where the focus is on resolving the dispute rather than complex legal arguments.

Representation in Conciliation

During the conciliation phase, which is the first step in resolving a dispute at the CCMA or a bargaining council, the rules regarding representation are quite specific. The aim of conciliation is to reach a mutually agreeable settlement. In this non-adjudicative setting, legal practitioners (attorneys and advocates) are generally not allowed to represent parties.

Instead, an employee can be represented by:

• A member or official of their trade union.

• A fellow employee.

An employer can be represented by:

• A director or employee of the company.

• A member or official of an employers' organisation.

Representation in Arbitration

If conciliation fails and the matter proceeds to arbitration, the rules around legal representation become more detailed. Arbitration is a more formal process where a commissioner or arbitrator makes a binding decision.

In most arbitration cases, parties have the right to be represented by a legal practitioner. However, there is a significant exception for disputes concerning unfair dismissal due to misconduct or incapacity. This limitation applies whether the case is heard at the CCMA or a bargaining council.

In these specific cases, legal representation is not automatically allowed. A party wishing to be legally represented must formally apply to the presiding commissioner or arbitrator for permission. Permission may be granted if:

• All parties consent to the legal representation.

• The commissioner or arbitrator, after considering several factors, concludes that it would be unreasonable to expect a party to deal with the dispute without legal assistance.

When making this determination, the adjudicator will consider:

• The complexity of the legal and factual issues involved.

• The public interest in the matter.

• The comparative ability of the parties or their representatives to deal with the dispute.

The Rationale and Its Implications

The restriction on legal representation in misconduct and incapacity cases is intended to maintain a level playing field. This prevents disputes from becoming overly legalistic and costly, which could disadvantage individuals or small businesses without the resources for legal counsel.

For employees and employers, understanding Rule 25 is crucial for preparing for a case at either the CCMA or a bargaining council. It is essential to know that you may need to present your own case, particularly in dismissal disputes related to conduct or performance.

If you believe your case is complex enough to warrant legal representation in a misconduct or incapacity arbitration, a well-motivated application is your pathway to securing that right.

Conclusion

While Rule 25 may seem restrictive, its core purpose is to uphold the mandate of the CCMA and bargaining councils to provide an accessible and equitable forum for resolving labour disputes. By understanding its provisions, parties can better navigate the process and ensure their case is heard fairly.

This article is provided for informational purposes only and not for the purpose of providing legal advice. For further information or representation at the CCMA or any bargaining council, please contact Pangea Labour Solutions:

Email: helpdesk@pangealabour.co.za

WhatsApp: 076 723 7983 

Written by: Johann Viljoen, Managing Director, Pangea Labour Solutions.